ACCA Enhancement Vacated Because Government Failed to Prove That One of the Three Prior Violent Felonies Was Counseled

Although brief, this opinion covers a lot of ground on three very interesting issues: 1) whether an Old Chief stipulation waived Hollis's right to collaterally attack the validity of an uncounseled prior conviction; 2) whether the Government proved that the prior conviction complied with Gideon, in the face of Hollis's testimony that he was indigent at the time of the prior conviction, that he did not have counsel, that the court never offered him counsel, and that he never waived counsel; and 3) assuming that the court decided an issue against Hollis in his first appeal, whether the manifest-injustice exception to the law of the case rule allowed the court to reconsider that issue on this appeal following resentencing. On the down side, all this makes for a fairly lengthy post. So I'll just summarize the opinion here, and leave the commentary for a future post, because I think it has broader implications for sentencing generally, and not just constitutional challenges to ACCA predicates.

Hollis was charged with being a felon and a fugutive in possession of a firearm. Both charges involved the same gun on the same occassion. At trial, Hollis stipulated that he had been convicted of a felony in South Carolina in 1963. The jury found him guilty. At sentencing, the court applied an ACCA enhancement after finding that Hollis had three prior violent felony convictions, including the 1963 South Carolina conviction.

In his first appeal, Hollis argued that 1) one of his convictions must be vacated, because under United States v. Munoz-Romo, a conviction for being a felon-in-possession and a fugitive-in-possession cannot both rest on possession of the same gun on the same occasion, and 2) it was unclear which of his prior convictions served as the predicates for the ACCA enhancement. The Government conceded the first issue, and asked for a remand on the second. The court of appeals granted the Government's motion to vacate and remand for resentencing in a brief order, without addressing the Munoz-Romo argument.

At resentencing, there was no dispute that Hollis had two prior violent felony convictions. But he argued that his 1963 South Carolina conviction could not count as the third because it was obtained in violation of his Sixth Amendment right to counsel.

Hollis testified that he was not represented by counsel in that prior proceeding, was indigent, was not advised that he was entitled to appointed counsel, and did not waive his right to counsel. The government offered a document from the state prosecutor’s office (the “prosecutive summary”) that purported to reflect the name of an attorney representing Hollis and other defendants in at least one aspect of the case. The government also took the position that the stipulation regarding this prior offense foreclosed Hollis from collaterally attacking the 1963 conviction.

The district court concluded that Hollis's stipulation barred him from challenging the South Carolina conviction. It also concluded that the court of appeals had rejected Hollis's Munoz-Romo challenge in the first appeal, and imposed the same sentence on both counts as it had at the first sentencing. Hollis went back up.

The court of appeals first held that Hollis's the stipulation did not waive his right to collaterally attack the validity of the prior conviction. It concluded that the text of the stipulation, which said only that Hollis "was convicted" of the prior offense, did "not address [his] guilt or the truth of the charges." The stipulation also did not say that the conviction was constitutionally valid, and did not say that Hollis was waiving his right to collaterally attack the conviction. The court also rejected the Government's argument that a waiver could be inferred from the purpose of the stipulation; it instead observed that an Old Chief stipulation is simply an evidentiary avenue for avoiding a risk of unfair prejudice, and that Hollis's failure "to collaterally attack the prior conviction during the trial of his innocence or guilt does not foreclose a subsequent collateral attack during sentencing proceedings." Finally, the court refused to infer waiver under the Zales doctrine, which is limited to situations in which the defendant pleads "true" or "guilty" to an enhancement allegation. Zales didn't apply here because "Hollis has not pleaded 'true' or 'guilty' to the underlying offense or to the Armed Career Criminal Act enhancements. The stipulation in this case is not analogous in purpose or effect to a 'true' or 'guilty' plea: the purpose of Hollis’s stipulation is to avoid prejudice to the jury."

Having found no waiver, the court then turned to Hollis's Burgett argument:

The district court relied upon the waiver theory in ruling on Hollis’s challenge to his 1963 conviction, and the court made no factual finding as to whether Hollis had counsel for that conviction. In Mitchell [v. United States, 482 F.2d 289 (5th Cir. 1973)], we set forth the burdens and standards of proof when a defendant alleges that a prior conviction was unconstitutionally obtained because of lack of representation:

[W]hen a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel. Conversely, if the record of the conviction under collateral attack shows that the defendant was represented by counsel, the convicted defendant has the burden of impeaching the record.

The government argues that the prosecutive summary is evidence showing that Hollis was represented by counsel and therefore that the burden was upon Hollis to impeach that record at sentencing. But the prosecutive summary does not show what the government claims it does. It shows, at most, that Hollis and his co-defendants were represented by an attorney at their bond hearing hours after they were apprehended on May 14, 1963. Although the word “guilty” appears on the document, it has no information regarding a trial or plea proceeding. It does not reflect that Hollis was represented by counsel when convicted or that he validly waived his right to counsel.

Because the government has not established three counseled predicate felonies, the sentence must be vacated and Hollis must be re-sentenced.

Finally, the court reached the Munoz-Romo issue. (Strangely, Hollis didn't raise it in this second appeal; it was the Government who asked the court to vacate one of the convictions.) The court assumed without deciding that it rejected this argument the first time around, which meant that it could not revisit the issue unless one of the three exceptions to the law of the case doctrine applied. It held that the third exception --- that "the earlier decision is clearly erroneous and would work a manifest injustice" --- applied here:

In this case, Munoz-Romo unequivocally prohibits Hollis’s simultaneous conviction for Counts One and Two. If our opinion in the first appeal decided that issue and allowed both convictions to stand, it was “dead wrong” under our earlier decision in Munoz-Romo. Allowing an invalid conviction to stand would work manifest injustice. . . . In these unique circumstances, in which the government, in the interest of justice, urges us to vacate a defendant’s criminal conviction because it is foreclosed by this court’s prior precedent, it would be clear error and manifest injustice to allow the conviction to stand. We will grant the government’s request to vacate Count Two.

Monday, October 29, 2007

Ninth Circuit Holds Date of Removal Is An Element of Enhanced Penalties Under 8 U.S.C. § 1326(b) & Must Be Alleged In Indictment & Found By Jury BRD

In what is becoming a semi-regular feature of this blog, here's another Ninth Circuit case that you should be aware of: United States v. Salazar-Lopez, No. 06-50438 (9th Cir. Oct. 24, 2007) (Fisher, Clifton, Fogel, D.J.). There's good and bad in this opinion. The good is that it holds that the date of a removal, or at least the temporal relationship between a removal and a prior conviction, is an element of the enhanced penalties under 8 U.S.C. § 1326(b). That means the fact must be alleged in the indictment and either proved to the jury beyond a reasonable doubt or admitted by the defendant. The bad is that it reviews the Apprendi violation in this context for harmless error, rather than treating it as structural error. Read on for the details.

Salazar's indictment charged him with illegal reentry. It alleged that he had previously been removed from the United States, but it did not allege the date of the removal. At trial, the Government introduced evidence that he had been removed in 2005. After the jury found Salazar guilty, the probation officer prepared a presentence report recommending that Salazar's sentence be enhanced under § 1326(b)(1), because his 2005 removal came after a 2003 felony conviction. Salazar objected, arguing that, under the rule of Apprendi, he was subject to only the un-enhanced penalties found in § 1326(a) because the facts necessary to support the enhancement had not been alleged in the indictment or found by the jury beyond a reasonable doubt. The district court overruled the objection, and sentenced Salazar to twenty-one months' imprisonment and three years' supervised release.

Salazar pressed his Apprendi argument on appeal, and the court agreed with him. It held that

the temporal relationship between Salazar-Lopez’s removal and his previous conviction was a fact that increased the maximum sentence that he faced. As such, the date of the removal, or at least the fact that Salazar-Lopez had been removed after his conviction, should have been alleged in the indictment and proved to the jury. The failure to do so was an Apprendi error.

Unfortunately for Salazar, the court then took a wrong turn when it came to the nature of the error. The court held that this was not structural error, and was instead subject to harmless error review. It went on to hold that the error was harmless because the evidence of the 2005 removal was "overwhelming and uncontroverted."

As far as I know, there is no Fifth Circuit precedent directly on point on the date-of-removal/temporal-relationship-as-element issue. It does come up (such as when there's a prior conviction sandwiched between two removals, and the indictment alleges the earlier one), so Salazar-Lopez gives you some case law to cite on that point.

As for the harmless-vs.-structural error issue, I don't know off the top of my head what the state of Fifth Circuit law is on this point. But according to the Ninth Circuit Blog, Salazar-Lopez's holding on this point directly conflicts with Eleventh Circuit case law. (Not to mention the fact that Salazar-Lopez's analysis of the issue doesn't make any sense.) So as the 9CB says, look for a cert petition on this issue.

Misusing Social Security Number Obtained by Fraud is a "Crime Involving Moral Turpitude"

Those of you who represent aliens charged with crimes, and who therefore need to be mindful of the possible immigration consequences of a conviction for a particular offense, take heed: misusing a social security number obtained by fraud, under 42 U.S.C. § 408(a)(7)(A), is a "crime involving moral turpitude," which renders an alien statutorily ineligible for cancellation of removal.

That's really all there is to say about this case, although those of you who also handle immigration matters should take a look at pages seven through nine, where the court explains that its holding conflicts with the Ninth Circuit's decision in Beltran-Tirado v. I.N.S., 213 F.3d 1179 (9th Cir. 2000).

Friday, October 26, 2007

Operation Streamline Coming to Laredo

The U.S. Border Patrol plans to announce today a "zero tolerance" operation to prosecute, jail and deport all illegal immigrants caught in the bustling Laredo area, marking a significant tightening of immigration enforcement along a key U.S. border corridor.

This stepped-up effort is an expansion of the Border Patrol's "Operation Streamline" project in the Del Rio and Yuma, Ariz., sectors, which sharply reduced illegal entries. That is being expanded to the sprawling Laredo sector beginning Wednesday, officials confirmed.

As you might imagine, this will put an additional burden on courts that are already among the busiest in the nation.* As the San Antonio Express-News reported last week,

While prosecutors there couldn't be reached, judiciary spokesman Dick Corelli said the federal courts in Laredo already were inundated to the point that cases weren't being prosecuted.

"The federal courts are in a reactive mode here," Corelli said. "... The reaction is, 'Well, we'll handle any cases that come to the court in the best way we can.'"

The Express-News article also contained a chart showing that drug seizures increased dramatically at the same time that illegal alien apprehensions were falling in the Del Rio sector after the implementation of Operation Streamline. This related article in the Wall Street Journal explains that, "[a]s tighter security makes crossing the border trickier and more hazardous, the traditional mom-and-pop operations in Mexico that used to ferry people across have been replaced by larger, more-professional criminal gangs, often with ties to the illegal-drug trade."

*By the way, the Summer 2007 issue of the ABA magazine Litgation has a very interesting article by Judge Robert Gettleman, of the Northern District of Illinois, describing his experience as a visiting judge in Laredo. Unfortunately, you have to be an ABA member to access the article on-line, so you'll have to track down one of your ABA buddies if you want to read it. It's titled "Order on the Border," and is co-authored by Jenna Klatell, who was one of Judge Gettleman's clerks at the time.

Wednesday, October 24, 2007

Failure to Object At Sentencing to Reasonableness of Sentence Triggers Plain Error Review

Peltier pled guilty to being a felon in possession of a firearm. The district court sentenced him to 120 months' imprisonment, which was the statutory maximum and more than double the 46- to 57-month range recommended by the Guidelines. Peltier had argued for a below-guideline sentence and "suggested that he would benefit from a halfway house." But the district court concluded that he needed drug and psychological counseling, and explained that the 120-month sentence was done in part "to give him full opportunity to be able to get the treatment he needs because I don't think a one- or two-year program is going to help this." According to the opinion, "Peltier did not object to the sentence." Peltier appealed.

The court began with the standard of review, observing that "[t]his court has not yet determined whether a defendant's failure to object at sentencing to the reasonableness of his sentence triggers plain error review." There's a circuit split on this issue, with several circuits having held that plain error review applies. "[T]he Seventh Circuit," on the other hand, "has held that a defendant need not object at sentencing to preserve the error, because such a strict requirement would 'create a trap for unwary defendants and saddle busy district courts with the burden of sitting through an objection probably formulaic in every criminal case.'"

The court declined to follow what it characterized as the Seventh Circuit's "Booker-is-different" approach. It argued that an objection "serves a critical function by encouraging informed decisionmaking and giving the district court an opportunity to correct errors before they are taken up on appeal," and that Booker did not change that "underlying rationale." Thus, the court joined those circuits which review an "unpreserved claim of Booker unreasonableness" for plain error.

The court went on to hold that "[a]lthough Peltier’s 120-month sentence for keeping a rusty shotgun in a shed raises concerns about its reasonableness, any error does not appear so plain to us as to warrant reversal." It rejected Peltier's argument that the sentence gave insufficient weight to the much-lower Guideline range, approving the district court's conclusion that "Peltier's long history of recidivism made his situation stand out from the norm." It also found no plain error in the district court's apparent reliance on Peltier's socioeconomic status---the district court didn't think Peltier had the financial means to get the drug and psycholigical treatment outside of prison that it felt he needed. According to the court of appeals, "in light of the [district] court’s strong emphasis on Peltier’s general need for treatment and its reliance on other proper factors such as criminal history and risk of recidivism, any erroneous reliance on socioeconomic status was neither plain nor so essential to the judgment as to affect Peltier’s substantial rights."

The court also rejected Peltier's argument about the lack of expert support for the district court's findings:

Peltier contends the district court made a clear error of judgment in balancing the § 3553(a) factors because it did not “rationally connect” them with the facts of the case and the resulting sentence. Specifically, Peltier objects to the absence of any expert diagnosis of his anger and addiction problems. Although the court did not rely on expert diagnosis, it based its findings on the presentence investigation report (“PSR”) indicating a long history of substance abuse. Peltier did not object to facts contained in the PSR, and the court did not require an expert to rely reasonably on that report.

Finally, the court disagreed with Peltier's argument that the district court "did not explain why the need for treatment demanded a 120-month sentence instead of the 46- to 57-month sentence advised by the guidelines." It instead held that "the fact that a particular treatment program might be completed before the sentence has been served does not necessarily make the longer sentence unreasonable. That remains particularly so where, as here, factors other than treatment also support the sentence."

There's a lot that can be said about this opinion, and it has already generated some strong criticism from Professor Berman, both for its adoption of a plain error standard of review and for its application in this case. (He's also promised further commentary on the case, so keep an eye out for that. UPDATE:Here it is.)

Using plain error as the standard is wrong for several reasons. First, contrary to what the court says, the rationale for requiring an objection does not apply in this situation. When a defendant has asked for a particular sentence, backed up by specific reasons, and the district court has decided on a different sentence and given some explanation for its decision, it's hard to see what an objection is supposed to accomplish. Second, although the court doesn't say exactly what the objection is supposed to be, it suggests that a defendant must object to the reasonableness of the sentence. But reasonableness is the standard of appellate review, not the standard the district court is supposed to use when selecting a sentence. The district court standard is found in § 3553(a): a sentence sufficient, but not greater than necessary, to accomplish the goals of sentencing identified in the statute. Third, as some commenters over at Professor's Berman's post have pointed out, Peltier appears to run afoul of Fed. R. Crim. P. 51. That rule states that "[e]xceptions to rulings or orders of the court are unnecessary," and provides that "[a] party may preserve a claim of error by informing the court---when the court ruling or order is made or sought---of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection."

Nevertheless, for all the opinion's flaws, it's binding precedent in our circuit for the time being. Prudence therefore dictates that you object if the district court imposes a sentence greater than what you've asked for, even if you've already exhaustively laid out your argument before the court. Peltier unfortunately provides little guidance as to what that objection is supposed to say, so for now you'll have to figure that out for yourselves. And in light of the way the plain error review played out in this case, you may want to object to anything in the PSR that court arguably justify a higher sentence for your client, even facts which don't directly impact the calculation of the guideline range.

As reported at How Appealing, the Senate has consented to the appointment of Leslie Southwick to the Fifth Circuit. The White House press release announcing the nomination is available here. Judge Southwick is currently a visting professor at the Mississippi College School of law. He has previously served as a judge on the Mississippi Court of Appeals, as a JAG in the U.S. Army Reserves and the Mississippi National Guard, and as a Deputy Attorney General in the DOJ's Civil Division. Additional info about Judge Southwick's background is available in the White House press release.

Tuesday, October 23, 2007

Circuit Split On Generic Statutory Rape & On Whether Shepard Permits Use of Admissions Made Outside of Proceedings Leading to Prior Conviction

Yesterday the Ninth Circuit decided a case that sets up a conflict with the Fifth Circuit on a couple of important issues involving crimes of violence and the Taylor/Shepard categorical approach. The case is United States v. Rodriguez-Guzman,* and the issue was whether a conviction under Cal. Penal Code § 261.5(c), which criminalizes sexual intercourse with a person under age 18, constitutes generic statutory rape for purposes of guideline §2L1.2's 16-level COV definition.

The court first held that the age of consent for generic statutory rape is 16, because that's the age used by a majority of states. And because the California statute establishes age 18 as the age of consent, it's broader than generic statutory rape. That holding conflicts with at least two unpublished Fifth Circuit cases which held that § 261.5(c) constitutes generic statutory rape under guideline §2L1.2(b)(1)(A)(ii): United States v. Vigil-Sanchez and United States v. Lopez-Garcia. It also conflicts with United States v. Alvarado-Hernandez, which held that Texas's statutory rape statute, which establishes age 17 as the age of consent, constitutes generic statutory rape under guideline §2L1.2(b)(1)(A)(ii). (See our coverage of Alvarado-Hernandezhere.)

Rodriguez-Guzman also made an interesting comment regarding the scope of Shepard v. United States, which permits a court to examine certain documents from a prior conviction to see whether they pare down an overbroad statute and establish that the defendant was convicted of violating it in a way that fits within the generic offense definition. "At Guzman’s sentencing hearing his counsel represented that at the time of the offense Guzman was twenty and the intercourse was with his seventeen year old girlfriend." Interestingly, the court remarked that "[e]ven if the transcript of the sentencing hearing suggested the opposite—that Guzman’s offense qualified under the modified categorical approach—it would not suffice because that transcript is not judicially noticeable as a 'record[ ] of the convicting court.' Shepard v. United States, 544 U.S. 13, 23 (2005)."

Now that's probably dicta. But it nevertheless seems to be in tension with a few Fifth Circuit decisions which have approved the use of admissions about prior convictions that were made at the sentencing hearing for a later federal offense: United States v. Jenkins (admission that prior drug convictions were felonies could be used to determine that they were in fact felonies for purposes of 21 U.S.C. § 851), United States v. Mendoza-Sanchez (admission that prior burglary was of a "house" sufficient to establish that it was burglary of a "dwelling" under U.S.S.G. §2L1.2(b)(1)(A)(ii)), United States v. Martinez-Vega (defendant agreed that "everything in the PSR was correct," and that sufficed to establish which subsection of a statute underlay his prior conviction).

In light of the conflict on these issues, you should consider preserving them for en banc or Supreme Court review if they arise in any of your cases. The latter issue (concerning the scope of Shepard) is probably the more cert-worthy of the two. Even if the comment about Shepard is dicta in Rodriguez-Guzman, there may be other Ninth Circuit cases where it's actually part of the court's holding.

911 calls: testimonial or not, for purposes of the Confrontation Clause? It depends. Were the statements made for the purpose of allowing police to respond to an ongoing emergency, or has that purpose been accomplished such that any further statements become testimonial? Let's see how that played out here, on a somewhat strange set of facts.

Proctor, his brother Yogi, and their friend Fairley left a nightclub together and headed to Yogi's car. When they got there, Proctor grabbed a .38 revolver that Fairley had left on the dashboard. Fairley took exception to that, and Proctor started cussing, fired the gun into the ground twice, and took off running. Yogi called 911, and told the operator that Proctor 1) had stolen someone else's gun, fired it into the ground twice, and run back into the club; 2) was a convicted felon, and therefore barred from possessing a gun; 3) might be under the influence of cocaine; and 4) was "know[n] . . . real good" by the police. The police apprehended Proctor after a brief gun battle. Proctor was eventually convicted of three gun charges.

On appeal, Proctor argued that the admission of the 911 tape violated his rights under the Confrontation Clause. The court disagreed. It relied on Davis v. Washington, in which the Supreme Court held that statements made for the purpose of enabling police to respond to an ongoing emergency, which characterizes many 911 calls, are not testimonial for purposes of the Confrontation Clause. But Davis also acknowledged that a call for assistance can evolve into testimonial statements after the initial purpose of the call has been satisfied. So how do you know whether's a 911 call is testimonial? In Davis,

[t]he Court noted that: (1) the caller was describing the events as they were happening; (2) the caller was facing an ongoing emergency; (3) the nature of what was asked and answered was necessary to resolve the present emergency rather than learn what happened in the past; and (4) the caller’s answers were frantic. In conclusion, the Court held that the circumstances of the interrogation on the 911 recording indicate that the caller was not testifying as a witness, but rather was enabling police assistance to meet an ongoing emergency.

Applying these factors to Proctor's case, the court concluded that Yogi's 911 call was not testimonial:

Yogi’s call to 911 was made immediately after Proctor grabbed the gun and fired it twice. During the course of the call, he recounts what just happened, gives a description of his brother, indicates his brother’s previous criminal history, and the fact that his brother may be under the influence of drugs. All of these statements enabled the police to deal appropriately with the situation that was unfolding. The statements about Proctor’s possession of a gun indicated Yogi’s understanding that Proctor was armed and possibly dangerous. The information about Proctor’s criminal history and possible drug use necessary for the police to respond appropriately to the emergency, as it allowed the police to determine “whether they would be encountering a violent felon.”

The court rejected Proctor's argument that the emergency had passed once he ran off with the gun, concluding that Yogi could reasonably think the people in the nightclub were in danger, or that Proctor might come back to confront him and Fairley. So because the 911 call wasn't testimonial, its admission didn't violate Proctor's confrontation right.

Friday, October 19, 2007

The court has issued a notice of proposed amendments to Fifth Circuit Rules 27.3 and 27.4. The notice explains that, "[t]o address the problem of last minute motions and the ability of the court to respond timely, Rules 27.3 and 27.4 are redrafted to give adequate time for the court to consider and decide motions a party characterizes as 'emergencies.'" The text of the proposed amendments is available here. Anyone wishing to comment on the proposal, either in writing or electronically, must do so by December 1, 2007.

Thursday, October 18, 2007

Equivocal Opinion on Shepard Documents

This case a defendant’s 16 level sentence enhancement for a prior "crime of violence." The defendant’s prior offense was a New York conviction for second degree assault. That statute includes multiple disjunctive subsections, some of which fall within the 16 level enhancement, and others of which do not. The defendant first argued that the district court erred in consulting his indictment because he pleaded guilty to an offense different from that alleged in the indictment. The court agreed that this was an improper use of the indictment but nonetheless affirmed the sentence because other reliable evidence demonstrated the branch of the statute at issue.Specifically, the court distinguished United States v. Gutierrez-Ramirez – a case disapproving of a district court’s use of a California "abstract of judgment" – and found that the New York "certificate of disposition" was a sufficiently reliable judicial record to warrant the district court’s reliance.But its logic in this regard borders on the incoherent. The court stresses that the New York certificate was used only to establish the existence of the conviction, and holds that district courts are not limited to the Shepard documents in this limited context. But the opinion then concludes by finding the certificate is adequate to show the particular statutory subsection of which the defendant was convicted. It does not identify the certificate with any of the documents named in Shepard. The broader proposition at issue -- whether a district court is actually limited to the documents listed in Shepard in determining the branch of the defendant's prior statute -- is thus not clearly resolved.

Morgan was convicted at trial of twelve counts of health care fraud, under 18 U.S.C. § 1347, for her role in a scheme involving Medicare claims for motorized wheelchairs and scooters ("durable medical equipment" in Medicare-speak). Medicare beneficiaries can submit claims for DME, but the claims regulations require 1) a prescription for the DME from a treating physician who has actually seen the patient face-to-face, and 2) a "certificate of medical necessity" that, as the name implies, certifies that the patient actually needs the equipment. The details of the scheme were pretty involved, but here's Morgan's involvement in a nutshell: Morgan was paid to write wheelchair and scooter prescriptions for patients she never met. Her signature also appeared on CMN's for the equipment. Medicare paid nearly $8 million of the $24 million in claims submitted using Morgan's Medicare physician identification number.

Morgan raised a couple of interesting evidentiary issues on appeal, both of which the court rejected. First, she argued that the use of grand jury testimony to authenticate business records used against her at trial, as well as the admission of the records themselves, violated the Sixth Amendment's Confrontation Clause. (Unfortunately, the opinion doesn't clearly explain which records those were, or exactly what the testimony was. Also, the witness appears to have been a participant in the scheme. For reasons not explained in the opinon, he was unavailable to testify at trial.)

As for the foundational testimony, the court acknowledged that "Crawford specifically identifies grand jury testimony as testimonial in nature." But then it pointed to pre- and post-Crawford case law from the Fifth Circuit holding that the Confrontation Clause doesn't bar the admission of a certificate of the absence of public records, and that the confrontation right doesn't apply at sentencing. The court also cited Seventh and Ninth Circuit cases holding that certifications of the authenticity of business and public records aren't testimonial. The Seventh reasoned that if business records are nontestimonial, as Crawford said, then the foundational evidence must be, too. The Ninth Circuit apparently relied in large part on the inconvenience that live testimony would pose for witnesses and the Government, "without any apparent gain in the truth-seeking process." (I'm just a caveman, but don't see what that has to do with whether evidence is testimonial or not. And hasn't the Sixth Amendment has already made the inconvenience call in the accused's favor?) Based on all this, the court held "that Crawford does not apply to the foundational evidence authenticating business records in preliminary determinations of the admissibility of evidence." It also held that the business records themselves aren't testimonial, pointing to Crawford and to Fifth Circuit cases holding that public records and a certificate of non-existence of an INS record aren't testimonial, either.

Morgan's second challenge was to the admission of extrinsic evidence that she violated a condition of her pretrial release. At trial,

[a]fter questioning Morgan about the charges in the indictment, the government continued to cross-examine her about pretrial release conditions requiring her to refrain from opening any new bank accounts. Morgan admitted that she met her daughter at Compass Bank one day and that she endorsed a check for approximately $179,000 on that visit but denied depositing it and denied opening a new account.

The government called a rebuttal witness, Daniel Wu of Compass Bank, who testified that Morgan and her daughter met with him on October 24, 2005 when Morgan asked him to close two business accounts, to open a new business account, and to transfer the funds from the old accounts into the new account. The new account carried the same name as one of the closed accounts, and Morgan’s daughter was to be the signatory. Over a defense objection, Compass Bank records were admitted which included a signature card with Morgan’s daughter’s name and a copy of a check for $172,506. Wu identified the check as the instrument that was deposited on October 24, 2005, stated that Morgan had handed him the check and stated that he was present when she endorsed it. Morgan told Wu to only put her daughter’s name on the new account. Wu testified, “[Morgan] said to make sure that I remembered who she was so that when she took care of her personal matters, that she could—so that I could add her to this new account.”

The court observed that, because Morgan put her character for truthfulness at issue by testifying, FRE 608(b) permitted the Government to ask her about specific instances of misconduct, and "violations of the conditions of her pretrial release rise to a level of dishonest conduct sufficient to allow the government’s inquiry." But the court also pointed out that "Rule 608(b) does not allow extrinsic evidence of specific instances of misconduct outside of cross-examination and could not be the basis for admission of Wu’s rebuttal testimony or the bank records."

The court nevertheless held that Rule 404(b) permitted what Rule 608(b) otherwise disallowed in this case. It concluded that, because Morgan's defense at trial was that she lacked the intent to defraud and that the signatures on the CMN's were forgeries, "[e]vidence of Morgan’s attempt to circumvent pretrial release conditions by concealing her opening of a new bank account by using her daughter’s name rebutted her defense that she lacked fraudulent intent. Also, Morgan’s apparent perjury at trial proved fraudulent intent as to the underlying scheme for which she was on trial." The court also said that the episode at the bank showed that "Morgan had knowledge of how to commit fraud," that Morgan's "knowledge of how to circumvent signature requirements rebutted her testimony" that the signatures on the CMN's were forgeries, and that "[e]ven if she had not signed the forms, her activity at Compass bank proved that she knew how to benefit from the use of her identity without fully disclosing it." Finally, the court held that the prejudicial effect of the evidence didn't subtantially outweigh its probative value, so there was no abuse of discretion in admitting it.

This is the third time that the Fifth Circuit has grappled, in a published opinion, with whether a particular state statute fits within the generic definition of "kidnapping" for purposes of the 16-level crime of violence definition in guideline §2L1.2. This time it's a portion of Colorado's second-degree kidnapping statute that's at issue. In a very thorough and careful analysis, the court holds that the Colorado offense isn't generic kidnapping, and further refines the definition of kidnapping developed in the earlier two cases.

The court took its first crack at the issue in United States v. Gonzalez-Ramirez, which rejected the Model Penal Code approach to the question. The MPC distinguishes kidnapping from lesser forms of criminal restraint by requiring a special purpose for the restraint in the case of kidnapping. Gonzalez-Ramirez held that generic kidnapping doesn't require a special purpose. The court went on to hold that the Tennessee statute at issue fit within the definition of generic kidnapping, although it never really explained what the elements of generic kidnapping are.

Round Two was United States v. Iniguez-Barba. It held that the New York statute in question constituted generic kidnapping because it shared three of the four elements of the Tennessee statute from Gonzalez-Ramirez:

(1) knowing removal or confinement;

(2) substantial interference with the victim’s liberty; [and]

(3) (a) force, threat, or fraud, or (b) if the victim is incompetent or under age thirteen, lack of consent from the person responsible for the general supervision of the victim’s welfare[.]

Which brings us to Cervantes-Blanco. It involved Colo. Rev. Stat. § 18-3-302(1), which states that, "Any person who knowingly seizes and carries away any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping." After carefully parsing Gonzalez-Ramirez and Iniguez-Barba, the court concluded that the Colorado statute included the first and (possibly) the third elements listed in Iniguez-Barba. But it concluded (based on a review of Colorado case law) that the Colorado statute lacked the second element of "substantial interference with the victim's liberty."

The question therefore became whether a statute that includes only the first and third Gonzalez-Ramirez/Iniguez-Barba elements "and lacks any additional aggravating elements, such as the specified purpose requirements of the MPC definition, qualifies as the enumerated [COV] of 'kidnapping." The court held that "it does not," and summed up its holding thusly:

[I]n accordance with this circuit's precedent, a kidnapping statute such as § 18-3-302(1), which lacks the specified purposes of the MPC definition and other aggravating elements identified in Gonzalez-Ramirez and Iniguez-Barba, and also lacks an explicit "force or fraud" requirement, does not qualify as the enumerated offense of "kidnapping" [under guideline §2L1.2(b)(1)(A)(ii).]

Don't make the mistake of looking at this as just a "kidnapping" case. The court's reasoning process is at least as important as the specific holding, insofar as it illustrates how you have to take a careful look at the case law governing a particular COV question, as well as the state case law intrepreting and applying the statute at issue, to see whether you've got an argument or not. Sometimes you can find successful arguments that might elude you at first glance.

Does 18 U.S.C. § 1956(a)(2)(B)(i), which prohibits transporting the proceeds of illegal activity "to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds," apply to situations where the proceeds are physically concealed during the transportation, even if the concealment does nothing to disguise the source, ownership, etc. of the proceeds? Sparks flew when the Fifth Circuit considered that question en banc in United States v. Cuellar. The majority essentially held that concealing money while transporting it is sufficient to satisfy the concealment element of the offense. The strongly-worded dissent argued that the statute only reaches "transporting money to conceal it," not "concealing money to transport it."

Our initial coverage of the case remarked that "[i]t'll be interesting to see what happens with the inevitable cert petition in this case." Wonder no more. As SCOTUSblog reports here, the Supreme Court granted cert in Cuellar today. The question presented is "whether merely hiding funds with no design to create the appearance of legitimate wealth is sufficient to support a money laundering conviction." SCOTUSblog has also helpfully collected the petition for certiorari, the Solicitor General's brief in opposition, the petitioner's reply, and and amicus brief in support from the National Association of Criminal Defense Lawyers.

This should be a very interesting case to watch. And as always, don't forget to preserve the issue if it crops up in any of your cases.

Court Affirms Finding That Defendant Lied About His Place of Birth, Based On Something He Was Told When He Was Five Years Old

This case is Exhibit A for why there need to be more demanding standards for Guidelines fact-finding.

Trujillo, a Mexican citizen, pled guilty to meth trafficking. In the PSR interview, he told the probation officer that he was born in Fort Worth, Texas. Later, while reviewing Trujillo's juvenile record, the PO found Trujillo's Mexican birth certificate. The PO therefore construed Trujillo's statement about being born in Fort Worth as "mispresenting his citizenship," and recommended denial of acceptance and application of obstruction, for a 5-level swing in Trujillo's offense level calculation.

Trujillo objected to the PSR's recommendations, arguing that he had not intentionally lied about his citizenship because he genuinely believed that he was born in Fort Worth, and that, in any event, his statement wasn't material. The probation officer responded that Trujillo's objection was "uncorroborated." (It's unclear from the opinion whether the probation officer responded to Trujillo's materiality argument.) Trujillo countered with compelling evidence in support of his objection:

At the sentencing hearing, Trujillo’s stepfather testified that Trujillo was born in Mexico and was not his biological son but that Trujillo did not know his stepfather was not his biological father until this sentencing hearing. His stepfather began raising Trujillo as his son in the United States when Trujillo was three years old. His stepfather also testified that he told Trujillo at age five that Trujillo had been born in Mexico, but later, after “people [] were psychologically damaging him and bothering him about that,” he told Trujillo to “tell them that you’re from Forth Worth so they don’t bother you anymore.” At the end of his testimony, Trujillo’s stepfather stated that he never discussed the issue with Trujillo again and that Trujillo believed that he was actually born in Forth Worth: “Yes, he believed that. He thought that way, he acted that way, and he lived that way, yes.”

Nevertheless, the district court overruled Trujillo's objection, "apparently relying on the fact that Trujillo was told he was born in Mexico and was told to lie about his place of birth." As for Trujillo's argument that the matter wasn't material because “it only affects whether the Court enters an order for the defendant to be turned over to immigration for deportation[,]” the district court responded, "That's pretty material."

Trujillo appealed, to no avail. As for the district court's finding that Trujillo intentionally lied about his birthplace, the court of appeals simply held:

The district court had the opportunity to judge the credibility of the witness, and based on the deference we must give to that determination and based on the record evidence, the district court’s finding is not implausible and was not clearly erroneous.

It also held that Trujillo's statement was material, because, "[i]f believed, the false statement would have affected the terms of his supervised released regarding deportation."

(With due respect, the court is wrong. This isn't a matter of deferring to the district court's credibility determination, since the district court apparently credited most of what the stepfather said. Instead, it's a matter of whether the district court drew the correct conclusion from those facts, and it's simply absurd to conclude that Trujillo knew he was born in Mexico because his stepfather told him that when he was five years old, especially when a 5-level increase hinges on that finding. And as for materiality, the only effect Trujillo's citizenship has on his supervised relase is that it'll be non-reporting release due to the fact that he'll be deported. It's hard to see how that could have any effect at all, much less a material one, on the district court's decision on the length or conditions of supervised release.)

Trujillo also argued on appeal that his 84-month sentence, which was in the middle of the 78- to 97-month produced by the 5-level increase in his total offense level, was unreasonable "because his statement did not impede the presentence investigation, he pleaded guilty to the indictment, he cooperated with the Government, his cooperation led to the arrest of another individual, and he had a category I criminal history." The court rejected that argument, as well, inexplicably stating that "Trujillo has presented no compelling reason and has cited no authority to support a determination that this sentence is unreasonable."